New OSHA Rule Requires Change in Drug Testing Policies

The Occupational Safety and Health Administration (OSHA) issued a rule requiring employers to inform employees of their right to report injuries, not to retaliate against employees for reporting injuries, and declares that blanket post-incident drug testing policies deter employees from reporting workplace injuries.

While the rule does not ban drug testing of employees, it prohibits employers from using drug testing (or the threat of drug testing) as a form of retaliation against employees who report injuries or illnesses. OSHA states that drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use. While OSHA does not require employers to specifically suspect drug use before testing, the agency states that there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.

The rule further states that if an employer conducts drug testing to comply with the requirements of a state or federal law or regulation (such as a workers' compensation law), the employer's motive would not be retaliatory, and the final rule would not prohibit such testing.

These anti-retaliation and notice requirements are effective August 10, 2016. (NOTE: On July 13, 2016 OSHA announced it would delay enforcement of the anti-retaliation provisions from August 10th until November 1, 2016.)

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